Maine clean elections on the precipice: Program has flaws, but what happens without it?

Last year, John Nutting, a Leeds Democrat, eyed a fourth consecutive term in the state Senate. Nutting, who had used Maine's publicly financed clean elections campaign system in 2008 and 2006, decided in 2010 to run as a traditional,  privately financed candidate.

Strategists in the Maine Republican Party immediately took note. In their view, Nutting's decision not to "run clean" meant his seat, under Democratic control since 2004, was suddenly winnable.

"When he didn’t go 'clean,' I know that our side looked at that like waving a red flag in front of a bull," said Rep. Lance Harvell, R-Farmington.

In October, the GOP charged. Campaign finance reports show that three Republican political action committees targeted Nutting's race at least 15 times, buying television, print and radio ads either opposing Nutting or supporting his Republican challenger, Garrett Mason.

"(The GOP) knew that they could fire at (Nutting) all day long," Harvell said.

The GOP knew that Nutting didn't have what Harvell called "protection money," the ability to buy ads and respond to attacks.

Maine's clean election system is designed to give publicly financed candidates the chance to compete against wealthy, privately financed candidates or those supported by corporate interests. It does so by giving "clean election" candidates a set amount of upfront money and additional matching funds if their opponents' spending goes above certain limits. The matching funds are also supposed to give clean candidates the chance to counter incursions by PACs.

In 2010, Nutting proved unable to raise enough late money to fight off the PACs. Even if he could have found more, it could have been countered by Mason. Like nearly 80 percent of legislative candidates running in 2010, Mason ran as a clean election candidate. He had matching funds — "protection."

Mason won the race, becoming one of a host of Republican freshmen who helped the GOP sweep control of the Legislature.

This summer, the U.S. Supreme Court ruled that a matching funds provision in Arizona's clean election law was unconstitutional. The law was modeled after the system Maine pioneered in 2002. Five of the nine justices said matching funds violated the First Amendment; would-be donors were discouraged from exercising their political speech — buying ads, giving money to a candidate — because they knew such acts could be countered by more taxpayer funding to match the contributions.

The ruling, criticized by some as furthering corporate influence in elections, rippled to Maine.

Augusta lawmakers are exploring ways to change the Maine Clean Election Act to comply with the court decision. Several options are on the table. But one – simply eliminating matching funds and allowing clean election candidates to receive only public financing of the initial upfront amount — appears to be gaining traction with the Legislature's Republican majority.

Maine Citizens for Clean Elections, the group that in 1996 successfully won voter approval of the Maine Clean Election Act, has said that option would cripple the program. 

Mark Brewer, a political science professor at the University of Maine, agrees. Without the assurance that resources will be available to defend against outside attacks, he said, fewer candidates would use public funds.

"It will render public financing mostly irrelevant," Brewer said. "The fact of the matter is, real money is starting to come into state legislative races here."

The potential demise of the clean election law raises questions about the future of Maine's legislative elections: What kind of candidates it will attract and who, ultimately, will influence lawmaking?

It also raises questions about the clean election system itself. Has the law worked as it was intended? Has it encouraged more candidates to run for Maine's citizen Legislature? Has it limited outside money in elections and weakened the tether between lawmakers' decisions and campaign donations?

As the Nutting-Mason race demonstrated, the answers are complicated.

Popular, practical

Rep. Ralph Sarty, R-Denmark, remembers the first time a campaign donor appeared before one of his legislative committees.

The panel was reviewing a bill that could affect the donor's business.

Sarty said he doesn't think the owner would have tried to cash in his campaign investment. However, he wondered if the situation would be different if another business had given him $1,000, not the $5 Sarty had received from this particular donor. 

Sarty is a three-time clean election candidate. To qualify for upfront public financing — about $5,000 for a contested House race, $25,000 for a Senate race — he and other clean election candidates have to collect a set number of $5 checks from individual donors. 

The idea behind the small donations is to encourage voter contact, allowing candidates to get fundraising done early so they can meet potential constituents. The small donations are also designed to limit the need to solicit large contributions that might make lawmakers beholden to a particular interest group or business.

"It certainly made me feel free of any connection, certainly any monetary connection, to that business as a member of that committee," Sarty said. "I felt good about running clean."

Mainers have also been largely supportive of the act. An overwhelming majority of voters enacted the law in 1996. Recent polls taken when the Legislature was considering bills that would repeal the law show that it enjoys continued public support.

"I think the public thinks there’s far too much money in the election process, and I agree with that 100 percent," Sarty said.

Others, including Rep. Mike Carey, D-Lewiston, believe the clean election law has encouraged candidates to run for office who otherwise may not have.

Sarty agreed.

"To go out and ask for what I consider large sums of money, I find very demeaning," he said. "I think it can, in some cases, put you in a compromising position if you’re elected."

Harvell, of Farmington, says that many would-be candidates feel the same way. That's why the law has become a recruitment tool for both Republicans and Democrats.

The parties have an interest in getting names on the ballot. Even races that aren't competitive can boost the name recognition of the loser, setting him or her up for a future campaign.

Brewer said a nonviable clean election program would probably create a number of races in which there's "either no D or no R on the ballot," especially in districts where one party has a significant advantage over the other or a well-funded and established incumbent.

"It’s tough to recruit candidates in those districts, anyway," he said. "Why on earth would you go out and subject yourself to that if you can't compete?"

There's debate about whether the clean election law is worth its costs to taxpayers or is as clean as its namesake. 

Dan Billings, chief legal counsel to Gov. Paul LePage, says the program's popularity is overstated by advocates. Billings said clean election candidates have an advantage over privately financed candidates, a belief that appears to be reinforced by the Nutting-Mason race.

That advantage, Billings said, is why the program is used by Republicans who might otherwise reject on principle public subsidies for candidates.

Billings has also claimed that the parties sometimes help candidates collect checks, essentially dirtying a clean election goal. The notion that all "clean" candidates are working independently, meeting voters and campaigning, Billings said, "just isn't the reality."

Others have claimed that candidates have taken advantage of the system.

Last year, a Democratic lawmaker wrote on a listserve that she had used clean election money to buy a laptop. The purchase was legal, but critics, including  Billings, blasted Cynthia Dill, then a state representative, for using taxpayer money for equipment that could be used after the election.

Dill eventually sold the laptop and returned the money. However, Dill also rankled others when she claimed the clean election act and online campaigning made it so she didn't have to meet with voters in 2010. 

Mike Tipping, a clean election supporter who works for the progressive Maine People's Alliance, wrote in the Waterville Morning Sentinel that Dill had committed "campaign malpractice" by spurning voter contact.

The incident armed clean election critics, whose primary complaint is the cost of the program and that taxpayers have to fund it.

Even supporters like Sarty believe the system has at times cost more than it should.

Still, it's not clear how much the cost argument is grounded in ideology or political strategy.

Democrats are the biggest supporters of clean elections. They worry that losing that equalizer would put their candidates at disadvantage to GOP candidates.

Many Republican lawmakers have spoken highly of the program. However, the biggest critics reside at the top of the GOP's power structure.

The partisan split has been evident as lawmakers work to fix the unconstitutionality of the matching funds provision.

Billings, who was a Republican operative on campaigns, has said the current proposals are accompanied by shaky cost estimates. Additionally, he believes that some commission staff have an "institutional bias" toward preserving clean elections because some of their jobs were created to administer the law.

Billings claims his comments don't represent the LePage administration's position on the law. However, the administration has supported limiting the law and exempting from it gubernatorial candidates. It also advocated for a measure that doubles the individual, private campaign contribution limit for gubernatorial candidates.

Higher use of the Maine Clean Election Act would mean higher costs to the taxpayers who fund it. The Legislature has budgeted $3.3 million for the program next year.

Many Republican and Democratic lawmakers believe that's a fair price for the program. Rep. Linda Valentino, D-Saco, said the law helps shield lawmakers from outside interests and discourages big spending by outside groups during campaigns.

Others aren't convinced.

"The reality is, private money is coming in, anyway," Harvell said.

He's correct.

Outside money

During the 2010 election, outside groups spent about $1.5 million opposing and supporting legislative candidates, which is allowed under Maine's clean election law, provided that clean candidates have no involvement with the spending by those groups.

A big chunk came from the Virginia-based Republican State Leadership Committee. That PAC dropped what some lawmakers described as a "$400,000 bomb" on five Maine Senate races.

All five of the targeted Democratic candidates were running clean and should have been eligible for public matching funds equal to what the PAC spent against them. But the PAC's ad drop came late in the campaign, too late to trigger matching funds.

The extent to which the ads affected the races is unclear, but all five Democrats were defeated.

The Maine Commission on Governmental Ethics and Election Practices fined the Republican State Leadership Committee $41,000, which system supporters called a weak future deterrent for an organization that spent nearly $30 million in 2010.

Democratic operatives believe the drop affected other races, including Nutting's, because it saturated one of Maine's major media markets.

Some believe the the PAC drop would have happened regardless of whether Maine had a clean election law. Some believe it happened because clean election candidates usually have an advantage. 

Others, mostly Democrats, believe that without an effective clean election law, outside groups will be encouraged to come to Maine. Carey, of Lewiston, has said the law gives candidates a fighting chance, protects elections from "special interests and upholds the tradition of fair and open campaigns in our state."

Valentino agrees — mostly. 

She says there are holes in the system. Specifically, some clean election candidates have their own "leadership PACs," which are funded with precisely the kind of lobbyist and special-interest money that the program is designed to discourage.

Clean election candidates aren't allowed to coordinate with PACs or outside groups. However, just like in the Nutting-Mason race, that doesn't stop PACs from getting involved in competitive races.

Valentino last session tried to introduce a bill that would eliminate leadership PACs. The measure was soundly defeated, with leaders in both parties voting against it.

During the debate, some lawmakers acknowledged Valentino was on sound ideological footing. However, without comprehensive PAC reform, they believe leadership PACs are necessary to help win elections.

Several of those PACs put money in the Nutting-Mason race.

"If you can raise $60,000 in PAC money, why do you need clean elections money?" Harvell said.

Without clean elections

Lawmakers such as Harvell believe the influence of outside money in elections is inevitable. He said many candidates don't like it because they lose control over their campaigns, but they can't stop it.

"Politics is like war without bullets," he said. "It’s where we have revolutions. We do it at the ballot box."

He added, "Because you’re playing for what some people perceive as high stakes, they’re going to (intervene in races). They want to win. They don’t care."

Harvell doesn't think the clean election law can keep outside money from influencing Maine elections. However, he acknowledges that, despite its flaws, the act has attracted fresh faces to the Legislature. 

Harvell has run clean four times, three against former Democratic Attorney General Janet Mills. A Democratic stalwart with strong name recognition, Mills won all three contests, but at least one was very close.

It may not have been close, had Harvell not run clean. Democratic PACs targeted his race, just as Republican PACs targeted Nutting-Mason. But Harvell could match those groups nearly dollar for dollar, as a clean candidate.

Harvell, who works for a paper company, says he "probably" would have run if public financing wasn't available.

Sarty said he wasn't sure.

Sen. Doug Thomas, R-Ripley, said he liked several elements of the clean election law, including that it forced him to get out and meet voters.

"It’s awfully easy to get full of yourself," he said. "This brings you down to earth."

Nonetheless, Thomas said he'd probably still seek public office if the program isn't viable. 

"If you want to do something, you’ll find a way," he said.

But some worry that the end of Maine's clean election program could mean voters will end up with Augusta politicians who are more connected to special interests than their districts.

Brewer, with UMaine, says voters would likely see two kinds of candidates if the law is dismantled: Those wealthy enough to self-finance and those "who are more comfortable, or have more experience with, soliciting decent size amounts of money from others."

And that, Sarty said, could be a problem.

"I’m voted in by the citizens, not the special-interest groups," he said. "... I think many of the legislators that run traditional (campaigns) are very ethical public servants ... but it does increase the potential (for undue influence)."

Harvell predicted that Mainers will see increased PAC activity, like what occurred during the Nutting-Mason race. 

"I think people will still use (clean elections)," he said. "The candidates that are in tough races will raise PAC money on the side."

He added, "You've got to protect yourself."

smistler@sunjournal.com

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Comments

CLAIRE GAMACHE's picture

Fair elections

Given the attitude of the Supreme Court these days any attempt at fairness in financing election campaigns is a lost cost. There is no way the tax payer can even attempt to balance the money the Koch billionaires can spend. What I would like to see before the Supreme Court declares that unconstitutional is for the State or some private independent organization to buy 5 hours of TV and radio time the last week before the election, one hour a day, and give each candidate a chance to rebut all the smut that is coming at us in TV ads, the mail the radio and the internet in some sort of a debate or conversation forum. I have been very impressed with the polical arena conversations that take place on WCSH. I have learned a lot and found them very interesting. We could probably afford that and it would add an element of truth and fairness to the circus that our elections have become.

Gerald Weinand's picture

As I strong supporter of

As I strong supporter of public financed elections, I think that they are no longer a viable option for even those in "safe" districts. In fact, an argument can be made to increase the contribution limits for privately financed candidates.

Take for example the $400,000 that the Republican State Leadership Council (RSLC) spent on five Senate races here last year. All ten candidates involved (Dems and GOP) were MECA candidates; but even if the Democrats been privately financed, how would they have matched the $80,000 spent against them since contributions are capped at $350?

The Supreme Court ruling that money equals free speech is what started us down this slippery slope; last year's decision in Citizens United v. FEC stating that corporations and other groups have the same rights of speech as natural born persons has opened the floodgates.

Can money buy an election? Not directly. But with so many voters not paying any or much attention to issues which they help to decide, 30-second advertisements can and do have huge impact.

 's picture

Unions

And, of course, the unions NEVER pull any last minute moves. This story is laughable in its bias.

ANTHONY NAZAR's picture

The Republicans win is what happens

Why does anyone think that the Scalia Court - formerly the Supreme Court - went through contortions to place Clean Election laws in jeopardy?

They, along with minority, young, and senior voters, were on a list of things the RNC wants to go away to allow them victory without having to pretend to care about the unwashed masses. With Clean Election Laws scrubbed away, and the Citizens United Decision (another bought and paid for Scalia Court contortion) the 1% can buy elections at will.

If you think the above is hyperbole, remember that obscure Republican legislative candidates suddenly got major television advertising in the last week of the 2010 campaign. Slick mailers appeared in mailboxes alluding to the probable criminal history of Democrats. All that did not just appear. It was thanks to the Koch Gang and Citizens United which allowed them to steal te election without even trying to disguise where the money came from.

I can hear the responses from the rightwingers now, but Mr. Soros and Mr. Sussman aren't in the same league as the Kochs, the Waltons and even King Rupert, so spare us your finger pointing.

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